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New rule gives nursing home residents the right to litigate against nursing home facilities

If you have been following our blog on nursing home abuse, you've read that Illinois nursing homes have fared poorly in the past when rated by elder advocacy groups. Reviewing files of staffing-to-patient ratios, inspection reports and documentation of complaints, the executive director of Families for Better Care gave resident facilities in Illinois an "F" rating.

Learning of this negative assessment can give caregivers of the elderly pause when they consider their options for their relatives. For some, the needs of family members far outstrip the skill sets the caregivers possess. When this problem arises, family members may have no other option but to place an elderly relative in the care of an assisted living facility and hope the decision made was a correct one.

Reasonable Expectations

In entrusting their relative's care to a nursing home, relatives of the elderly expect that their family members will be treated with respect. When this is not the case, those family members often seek justice through legal means.

If these family members signed an admissions contract containing an arbitration clause before they moved their loved one into the facility, they would be unable to plead their case in court. Nursing homes across the country have embedded these agreements within their contracts, making the agreements contingent upon admission. In consenting to arbitrate matters, those ignorant of the implications of resolving conflict through arbitration or those desperate for a room for a loved one have signed away their rights to a public hearing for their elderly relatives.

Until now.

An agency operating within the Health and Human Services Department has barred nursing homes from receiving federal funding if they order arbitration be used to resolve disputes. Advocates of the elderly applauded the new rule because they believe that litigation promotes transparency and justice. They oppose arbitration for these reasons:

1. The bias of arbitrator

Those overseeing the arbitration are rarely impartial judges. It is often the case that the arbitrator has been hired by the corporation sued. In a sense, the arbitrator is the client of the firm that hires him to render a decision. For this reason, it's in the arbitrator's interest to oversee cases for corporations in the future, so this individual is predisposed to rule in favor of corporations.

2. The limited opportunity for appeal

The decision rendered is usually the final decision. Although the ability to appeal is a well-known aspect of litigation, this option is very rarely extended in arbitration. According to the Federal Arbitration Act, plaintiffs can apply to alter an arbitrator's decision; however, most petitions are not granted.

3. The private nature of arbitration

Another reason that corporations favor arbitration is that the evidence revealed during the course of the proceedings and the awards provided are kept confidential. When litigants present their case in court, the proceedings are made public and are available for public scrutiny. When such records exist, patterns of criminal activity may be revealed. Consumers benefit from learning of this history; corporations do not. In maintaining secrecy, arbitration allows corporations to perpetrate the same crimes over and over.

As a result of this ruling, residents of nursing homes can now bring new cases to court. The rule applies to those admitted to nursing homes after November 2016.

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